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United States v. Lopez

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
Oct 2, 2012
Case Number: 12-6410M (D. Ariz. Oct. 2, 2012)

Opinion

Case Number: 12-6410M

10-02-2012

United States of America v. Jesus Lopez


ORDER OF DETENTION PENDING TRIAL

In accordance with the Bail Reform Act, 18 U.S.C. § 3142(f), a detention hearing has been held. I conclude that the following facts are established: (Check one or both, as applicable.) [ ] by clear and convincing evidence the defendant is a danger to the community and require the detention of the defendant pending trial in this case. [×] by a preponderance of the evidence the defendant is a flight risk and require the detention of the defendant pending trial in this case.

PART I -- FINDINGS OF FACT

[×] (1) There is probable cause to believe that the defendant has committed

[×] an offense for which a maximum term of imprisonment of ten years or more is prescribed in 21 U.S.C. §§ 801 et seq., 951 et seq, or 46 U.S.C. App. § 1901 et seq.
[ ] an offense under 18 U.S.C. §§ 924(c), 956(a), or 2332(b).
[ ] an offense listed in 18 U.S.C. § 2332b(g)(5)(B) (Federal crimes of terrorism) for which a maximum term of imprisonment of ten years or more is prescribed.
[ ] an offense involving a minor victim prescribed in _______________.
[×] (2) The defendant has not rebutted the presumption established by finding 1 that no condition or combination of conditions will reasonably assure the appearance of the defendant as required.

Insert as applicable: Title 18, § 1201 (kidnapping), § 1591 (sex trafficking), § 2241 (aggravated sexual abuse), § 2242 (sexual abuse), §2244(a)(1) (abusive sexual contact), § 2245 (offenses resulting in death), § 2251 (sexual exploitation of children), § 2251A (selling or buying of children), § 2252 et seq. (certain activities relating to material involving sexual exploitation of minors), § 2252A et seq. (certain activities relating to material constituting or containing child pornography), § 2260 (production of sexually explicit depictions of minors for importation into the U.S.), § 2421 (transportation for prostitution or a criminal sexual activity offense), § 2422 (coercion or enticement for a criminal sexual activity), § 2423 (transportation of minors with intent to engage in criminal sexual activity), § 2425 (use of interstate facilities to transmit information about a minor).

Alternative Findings

[ ] (1) There is a serious risk that the defendant will flee; no condition or combination of conditions will reasonably assure the appearance of the defendant as required. [ ] (2) No condition or combination of conditions will reasonably assure the safety of others and the community. [ ] (3) There is a serious risk that the defendant will obstruct or attempt to obstruct justice; or threaten, injure, or intimidate a prospective witness or juror.

PART II -- WRITTEN STATEMENT OF REASONS FOR DETENTION

(Check one or both, as applicable.)

[ ] (1) I find that the credible testimony and information submitted at the hearing establishes by clear and convincing evidence as to danger that: [×] (2) I find by a preponderance of the evidence as to risk of flight that:

[×] The defendant is not a citizen of the United States.

[×] The defendant has a prior criminal history.

[ ] The defendant lives and works in Mexico. [ ] The defendant does not dispute the information contained in the Pretrial Services Report, except: [×] In addition:

In his favor, with respect to the risk of flight, are the facts that Defendant has a job, a family and a home in the United States, but he is a legal permanent resident and this status would be revoked and he would be deported if convicted in this case. Thus these ties to the community, which would normally help reasonably assure a defendant's future appearance, are much less significant when these ties will necessarily be severed if Defendant is convicted. And the weight of the evidence is strong that Defendant held a significant position in a major drug trafficking organization given that he was entrusted with nearly a million dollars in alleged drug proceeds. The detention decision is informed by the common sense question of why would a defendant facing a significant prison sentence and subsequent deportation if convicted not elect to avoid the potential prison sentence by effecting his own removal from the United States and this Court's jurisdiction? The only answer offered to this question was Defendant's ties to the community but as stated above, these ties or roots in our community will be severed if Defendant is convicted and there is no prospect that they may ever grow back. Adding to the risk of flight are the facts that Defendant was born in Mexico, lived there until he was about 18 years of age, and that he maintains contact with his family members who reside in Mexico.

The Court incorporates by reference the findings in the Pretrial Services Report which were reviewed by the Court at the time of the hearing in this matter.

PART III -- DIRECTIONS REGARDING DETENTION

The defendant is committed to the custody of the Attorney General or his/her designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. The defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attorney for the Government, the person in charge of the corrections facility shall deliver the defendant to the United States Marshal for the purpose of an appearance in connection with a court proceeding.

PART IV -- APPEALS AND THIRD PARTY RELEASE

IT IS ORDERED that should an appeal of this detention order be filed with the District Court, it is counsel's responsibility to deliver a copy of the motion for review/reconsideration to Pretrial Services at least one day prior to the hearing set before the District Judge. Pursuant to Rule 59, FED.R.CRIM.P., Defendant shall have fourteen (14) days from the date of service of a copy of this order or after the oral order is stated on the record within which to file specific written objections with the District Court. Failure to timely file objections may waive the right to review. See Rule 59, FED.R.CRIM.P.

IT IS FURTHER ORDERED that if a release to a third party is to be considered, it is counsel's responsibility to notify Pretrial Services sufficiently in advance of the hearing before the District Judge to allow Pretrial Services an opportunity to interview and investigate the potential third party custodian.

_______________

David K. Duncan

United States Magistrate Judge


Summaries of

United States v. Lopez

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
Oct 2, 2012
Case Number: 12-6410M (D. Ariz. Oct. 2, 2012)
Case details for

United States v. Lopez

Case Details

Full title:United States of America v. Jesus Lopez

Court:UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Date published: Oct 2, 2012

Citations

Case Number: 12-6410M (D. Ariz. Oct. 2, 2012)